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Nelson v. University of Hawaii12/11/2001
ewhat inconsistent language. For example, based on federal case law interpreting Title VII, Steinberg discussed the perspectives to be used in evaluating a HESH claim as follows:
he perspective to be used is that of the victim. Thus, if the complainant is a woman, the objective standard is met if a reasonable woman would consider such conduct sufficiently severe or pervasive to alter the conditions of employment and either [(a)] unreasonably interfere with work performance or [(b)] create an intimidating, hostile, or offensive work environment. Id. at 18, 960 P.2d at 1226 (emphases added) (citing, inter alia, Ellison, 924 F.2d at 878-79.
The language in Steinberg, setting forth the "severe or pervasive" requirement (see underscored text above), although not incorrect, is different from the standard discussed in Ellison. See Ellison, 924 F.2d at 879 (stating that a plaintiff must show that conduct was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment").
The required showing has also been described by the HCRC as follows:
The conduct was sufficiently severe or pervasive to alter the conditions of employment, such as having the purpose or effect of [(a)] unreasonably interfering with an individual's work performance or [(b)] by creating an intimidating, hostile or offensive working environment. Santos v. Niimi, No. 91-001-E-SH at 2 (HCRC Final Decision Jan. 25, 1993) (adopting conclusions of law from Proposed Decision Nov. 4, 1992 at 27) (citing, inter alia, HAR § 12-46-109(a)(3); Ellison, supra).
Nelson contends that instruction No. 9 was misleading and misstated Hawaii law by, inter alia, stating that Nelson had to prove that the conduct had the "purpose or effect" of both "altering the conditions of [Nelson's] employment and creating an intimidating, hostile, abusive, or offensive working environment." Nelson essentially argues that, inasmuch as the term "alter the conditions of employment" is similar to alternative (a) ("unreasonably interfering with work performance"), instruction No. 9 improperly suggested that Nelson was required to prove both (a) and (b). Defendants recognize that instruction No. 9 used language different from that used in Hawaii courts and by the HCRC in describing the required showing, but maintain that the difference is immaterial. Defendants contend that the trial court correctly instructed the jury based on the United States Supreme Court's decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), which requires the plaintiff to establish that the alleged conduct was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive environment." See id. at 67 (internal quotations and brackets omitted) (bold emphasis added); see also Ellison, 924 F.2d at 879.
Because the language used in both state and federal case law to describe the required showing is somewhat inconsistent, we believe that it is necessary to review the development of the "severe or pervasive" requirement found in the federal case law and relied upon by this court in Steinberg.
2. Federal case Law
Generally, federal case law affirms the EEOC regulations defining sexual harassment, which are nearly identical to Hawaii's regulations, making clear that a claimant must show that the alleged conduct had the "the purpose or effect of [(a)] unreasonably interfering with an individual's work performance or [(b)] creating an intimidating, hostile, or offensive working environment" and that (a) and (b) describe two discrete methods of establishing a claim. See, e.g., Ellison, 924 F.2d at 876 (citing 29 CFR § 1604.11(a)
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